R v A (No 3)

[2015] NSWSC 79

Supreme Court

New South Wales

Medium Neutral Citation:	R v A (No 3) [2015] NSWSC 79
Hearing dates:	17 February 2015
Date of orders:	17 February 2015
Decision date:	17 February 2015
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [14]
Catchwords:	CRIMINAL LAW – evidence – where police unsuccessful in serving a subpoena on a witness – where Crown sought to tender passages of the statement of the witness in her absence – no prior notice given to accused until the day on which the application was made – where counsel for the accused had instructions to cross-examine the witness as to credit – where opportunity to cross-examine would be lost – evidence excluded
Legislation Cited:	Evidence Act 1995
Cases Cited:	Bakerland Pty Limited v Coleridge [2002] NSWCA 30 Ordukaya v Hicks [2000] NSWCA 180 R v A (No. 2) [2015] NSWSC 76 R v Clark [2001] NSWCCA 494 R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 184
Category:	Procedural and other rulings
Parties:	Regina - Crown
Representation:	Counsel: Mr C Maxwell QC - Crown Mr W Terracini SC and Mr P Stitz - Accused Solicitors:
File Number(s):	2013/194634
Publication restriction:	Nil

Judgment (EX TEMPORE – REVISED)

1. The trial of the accused is currently in its third week. I have been informed that the Crown case is likely to close today. One of the remaining witnesses to be called by the Crown is the officer in charge of the case, Detective Olivaires, through whom the Crown will seek to lead evidence which is not in dispute.

2. However, the Crown has also sought to tender paragraphs [59] to [67] of a statement of JT dated 29 August 2012. Leaving aside issues of form, those paragraphs constitute evidence of previous instances of alleged neglect on the part of the accused towards the deceased. The admissibility of such evidence has been the subject of a previous ruling in which I concluded that subject to it being led in an admissible form, it was admissible as context evidence: R v A (No 2) [2015] NSWSC 76.

3. In support of the application the Crown tendered a statement of Detective Olivaires dated 16 February 2015 which set out, in general terms, the efforts which have been made to serve a subpoena on the witness in the period leading up to the trial. I am satisfied, having read that statement, that the police have made their best efforts to locate, and serve a subpoena on, the witness. Despite those efforts, they have been unable to do so.

4. In addition to attempting to personally serve the subpoena on the witness, numerous phone calls have been made to try and contact her. Enquiries have also been made through her mother as to her whereabouts. Detective Olivaires has expressed the opinion in his statement that the witness is avoiding service. Whether or not that is the case, it is abundantly clear that she cannot be located despite the best efforts of police.

5. In those circumstances the Crown seeks to tender the evidence by relying on s. 65(2)(b) of the Evidence Act 1995 (“the Act”). Mr Terracini SC who appears for the accused does not take issue with the proposition that the witness is "not available" for the purposes of s. 65(1), nor does he take issue with the general proposition that the evidence, to the extent that it is expressed in an admissible form, falls within s. 65(2)(b). However, he submits that in all of the circumstances, the evidence ought be excluded, either under s. 135 or s. 137 of the Act. In advancing this submission, Mr Terracini relied upon two principal factors.

6. Firstly, he relied upon the lateness of the notice given by the Crown. He pointed out that the name of this witness was on a list of witnesses whom the Crown indicated would be called to give evidence. I am informed by Mr Terracini, and there appears to be no dispute about it, that it was only today (or perhaps late yesterday afternoon) that the Crown indicated that he would not be in a position to call the witness and that he would be relying on the provisions of s. 65. That is not intended to be a criticism of the Crown. I am satisfied that he notified the defence of the position as soon as it became clear that he would not be able to call the witness. Nevertheless, the notice is very late and was given immediately before the closure of the Crown case.

7. In relying upon the late notice, Mr Terracini acknowledged that I have the power under s. 67(4) to dispense with the requirement imposed by s. 67(1) to give reasonable notice. He nevertheless submitted that in all of the circumstances no reasonable notice had been given.

8. The second matter upon which Mr Terracini relied was the inability to cross-examine the witness if the evidence were admitted. In advancing this submission Mr Terracini informed me from the bar table that he was in possession of instructions which went directly to the credit of the witness, including alleged previous drug dealing activities as well as other matters. There is no obviously formal evidence of such matters before the Court, but I accept unreservedly what has been put to me in that regard from the bar table by senior counsel. Mr Terracini submitted that the loss of the opportunity to cross examine the witness gave rise to prejudice which was cumulative upon that which arose from the late notice.

9. I have already outlined the circumstances in which late notice was given. Whilst no criticism can be levelled personally at the Crown Prosecutor in that regard, it remains the case that notice was not given until immediately before the Crown case was to be closed. In my view, that is a relevant factor to be taken into account in determining whether the evidence ought be excluded. The Crown did not suggest otherwise.

10. The inability of an accused to cross-examine a witness is also a relevant consideration for the purposes of ss. 135 and 137 of the Act (see R v Suteski (2002) 56 NSWLR 184; [2002] NSWCCA 509 at [126] per Wood CJ at CL) although the bare fact of that inability is not necessarily decisive of the issues which arise under those sections: Ordukaya v Hicks [2000] NSWCA 180; Bakerland Pty Limited v Coleridge [2002] NSWCA 30; R v Clark [2001] NSWCCA 494 esp. at [164] per Heydon JA (as he then was). In Suteski, having made reference (at [126]) to those authorities, Wood CJ at CL said at [127]:

“The decisions mentioned clearly depend upon their particular facts, that is, upon the character of the evidence involved and upon the nature or strength of the potential prejudice to the defendant. Each case in my view needs to be examined individually by reference to the well-understood balancing exercise.”

11. Ultimately in Suteski his Honour concluded (at [129]) that on the facts of that case the complaint as to the existence of prejudice arising from the inability to cross-examine the witness in question was somewhat speculative. The relevant ground of appeal was dismissed.

12. In the present circumstances, I am satisfied that the prejudice to the accused by being denied the opportunity to cross-examine the witness is not speculative at all. Senior counsel for the accused has articulated various matters which he wishes to pursue, on instructions, and which go to the credit of the witness. Coupled with the fact notice was only given by the Crown within the last 24 hours, the inability of the accused to cross-examine the witness gives rise to a degree of prejudice which, in my view, justifies the exclusion of the evidence.

13. Section 135 of the Act confers a general discretion on the Court to exclude evidence if, amongst other things, its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. Section 137 mandates the refusal to admit evidence adduced by the Crown if the probative value is outweighed by the danger of unfair prejudice to the accused.

14. Senior counsel for the accused relied upon both provisions. In my view, for the reasons that I have outlined, the probative value of the evidence in the present case is clearly outweighed by the danger of unfair prejudice to the accused. Accordingly, in those circumstances, I exclude the evidence pursuant to s. 137 of the Act.

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Decision last updated: 26 February 2015